THE NORMAN LEGAL SYSTEM
That the Norman kings of southern Italy used law to effectuate their rule imposed certain practical limits upon their power as well as upon their authority.
In contrast to the Germanic kings of an earlier time, who were judges but not legislators, the Norman rulers of the twelfth century and thereafter considered it part of the office of the king to make new laws.
Roger II declared that the king is a "maker of laws" (conditor legum). Indeed, Roger promulgated the first modern code of royal law in the history of the West, the Assizes of Ariano. This is called a modern code and the first of its kind in the West because it did not purport to be merely a collection of rules and principles but instead was a systematic presentation of what were thought to be basic features of the legal system. Moreover, it was presented as positive law, enacted by the king as legislator. It drew, to be sure, on customary law, natural law, and divine law, and it fused many diverse features of the Byzantine, Moslem, Lombard, Norman, and Romano-canonical legal traditions, but it recast those sources in the form of a new and comprehensive legislative act.-419-
The Assizes of Ariano consist of a preamble and forty_four separate, numbered articles, many of them comprising several paragraphs. The text purports to be written by the king himself; there is no mention in it of the assembly of dignitaries at Ariano at which the Assizes were adopted. The preamble states that "since God in his mercy has... restored peace [and] reformed the integrity of the kingdom... we [the king] are compelled also to reform the paths of justice and piety where we see it being wretchedly distorted.""This is not from pride, as though we claim by our vigils to be more j ust or more moderate than our predecessors in issuing laws and interpreting them, but because...
piety itself has instructed us, saying: 'Be merciful even as your father is merciful.'" Of special importance here are two points: the laws are issued in order to reform the paths of justice and piety, and it is th e role of the king to issue laws and to interpret them.Article 1 (technically the articles are referred to as "Assizes") is entitled "Concerning the interpretation of laws." It provides: "We command that the laws newly promulgated by our majesty be observed by all generally, softening too great strictness by the sentiment of piety, stiffening flexibility by a certain restraint, clarifying what is obscure." Thus the text is understood necessarily to contain ambiguities and to be subject to interpretation.
Article 2 is entitled "Concerning the privilege of holy churches," and it affirms that the king will protect churches and keep them inviolate. Of interest is the fact that throughout the Assizes "church" is always in the plural and, in addition, no mention is made of any ecclesiastical independence from the crown or of any subordination of the clergy to papal authority. Rights of the churches are spelled out in articles 5 through 16, dealing with such matters as the sale of holy relics, right to sanctuary, royal jurisdiction over cases of violation of churches, privileges of bishops not to testify except in certain matters and of priests not to swear oaths, prohibition of illegal conventicles (house worship), prohibition of purchase and sale of clerical offices, and similar matters.
Articles 17 through 21 deal with high crimes against the crown, including the crime of disputing the king's judgments, conspiracies against him, forgery of royal documents, and counterfeiting of money. Article 22 deals with the inquisitional procedure to be used in cases of "falsehood," which are then defined in article 22 through 26 to include issuance of false documents, bearing of false witness, interference with the making of wills, taking of public funds by public officers and judges, and negligent or intentional loss or taking of public goods.
Article 27 concerns family law (celebration of marriage), and articles 28 through 33 deal with sex offenses (adultery, prostitution, pandering, rape). Article 34 provides for composition in cases of insult; this alone is treated as a matter to be settled privately. Under article 35 injuries are
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punishable according to the status of the person injured. Article 36 provides that physicians may not practice without being licensed by the king. (In fact, a system of examinations was introduced for doctors, the first example of such a system in Europe.) Articles 38 to 43 deal with kidnapping (selling into slavery), killing in self_defense, nonresponsibility of infants and insane persons, homicide by a thief in the night, arson, causing a crime to be committed (which was not itself made punishable), and poisoning. The last article (44) makes a judge punishable for fraudulently or negligently rendering a false judgment. 17_
Max Hofmann has contrasted the "structured" character of the Assizes of Ariano with the "casuistic" character of the older Lombard Liber Papiensis. The latter was much longer, with about one thousand items, and purported to cover the whole law. However, in Hofmann's words, it "tries to regulate every fact situation separately and rarely sets forth principles." It is disjointed and "full of gaps and contradictions." In contrast, the Assizes of Ariano do not purport to cover the whole law. Nevertheless, "none of its provisions are thinkable except in relationship to the others... Moreover... in the areas covered by it it is sufficiently complete; the gaps can be filled by purpose-oriented (Zweckentsprechende) interpretation of the laws that are given."
Hofmann adds: "Precisely this necessity of interpreting the laws before applying them strengthened the influence of the state power, since the interpretation could not simply be carried out by everyone, but rather was in principle the right of the king." 18"Justice [became] a public concern, [to be] handled by specially trained officials." 19
Roger II's laws clearly established royal supremacy over the church, over the feudal nobility, over the city communes, and over the people generally.
The prosecution of heretics was entrusted to the monarchy in its own right and not as executor of a decision of the ecclesiastical authorities. The king severely limited the jurisdiction of feudal courts. None of the cities succeeded in constituting itself a free town; all of them were headed by officials appointed by the king. The entire population was subjected directly to the royal authority, and it was made punishable as treason, laesio maiestatis, to conspire not only against the king but also against any of his leading men.Royal supremacy did not, however, exclude the rights of subordinates vis-a-vis each other, and even (within limits) vis-a-vis the crown. With respect to the church, the Norman kings generally accepted the jurisdiction of ecclesiastical courts, operating under canon law, in most types of cases involving clerics, as well as in cases of spiritual offenses of lay persons, family matters, wills, and any dispute which both parties agreed to submit to ecclesiastical jurisdiction. The ecclesiastical courts were, to be sure, themselves under the king as hereditary papal legate. Normally, however, the king would follow papal decisions and interpretations of
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the law, and if he did not, his decision might be reversed by the pope. The Norman kings, for all their Caesaropapist policies, did not deny in theory__________________________________ the supremacy of the papacy in spiritual matters.
Even Emperor Frederick II, in a famous letter to the teachers and students of the University of Bologna, in which he asserted that the emperor is God's vicar on earth in all temporal matters, reaffirmed that the pope is God's vicar on earth in all spiritual matters. 20 Thus the dualism of church and state had important constitutional and legal consequences in the Kingdom of Sicily, as it did throughout the West, although in Sicily the scales were weighted much more heavily in favor of the state than they were elsewhere.
In addition to legal limitations on royal power and authority imposed by the dual jurisdiction of ecclesiastical and temporal courts, there were also legal limitations imposed by the dual jurisdiction, within the temporal sphere, of feudal and royal courts.
The king severely limited the feudal jurisdiction, particularly by withdrawing into royal courts cases of serious crimes committed by lay persons, as well as many types of disputes involving freehold land. Nevertheless, for lesser crimes and for many types of civil matters each feudal lord had his own court, to which his tenants paid suit. This meant that a great part of local government -- outside the cities -- was in the hands of feudal lords, ruling chiefly by manorial law.In addition, lord-vassal relations were governed by feudal law, which also exercised a restraining influence on royal absolutism. In the eleventh century, the Norman rulers in southern Italy had parceled out the conquered lands to their Norman countrymen as fiefs, dispossessing prior landholders and creating a new aristocracy. The most important of the new landholders held their estates directly from the king as tenantsin-chief and were charged with the duty of providing a specified number of mounted knights for military service. Subinfeudation was permitted, but subtenants were required either to provide the military service of others or else to serve themselves. The contractual aspects of these relationships were strongly emphasized. The amount of service owed by tenants to lords was supposed to be clearly specified in advance of the grant of a fief. Careful distinctions were drawn between various types of feudal obligations. Seignorial courts had competence to resolve lordvassal disputes. The royal court itself might meet as a feudal court, with the chief tenants attending as suitors. In all this, Norman Sicily followed a pattern remarkably similiar to that followed by the Norman rulers in England and Normandy. The Sicilian monarch dominated his tenantsin-chief -- and also their subtenants -- to a greater extent than his English counterpart; nevertheless, the feudal system in the Kingdom of Sicily (especially in Apulia, where central authority had been established much more slowly and there was a multiplicity of small fiefs), like the feudal
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system in England and Normandy, as well as in France, Germany, and elsewhere in western Europe, combined centralized and decentralized elements, holding them together through legal institutions and legal processes.
The judicial authority of the king was exercised immediately by his own "great court" (magna curia), consisting of himself and the principal officers of his household together with various lay and ecclesiastical dignitaries. However, professional judges also existed from an early time, inherited from the Byzantine government. Roger II made use of local professional judges ("justiciars") in the cities and also introduced professional judges into the royal curia. Professionals came to play a predominant role, and after 1168 the exclusive role, in the king's central court. 2^Roger II also introduced professional justiciars at the provincial level; in the 1140s such justiciars, many of them bishops and archbishops, were stationed in all the major subdivisions of the kingdom. "Evidently a group of justices was assigned to a particular region for a series of years." 22 They had jurisdiction over major crimes, which included robbery, housebreaking, assaults on the highway, rape, homicide, ordeals, criminal slander, and arson. (Lesser offenses were tried by lesser royal officials, the bailiffs.) In addition, the competence of the provincial justiciars included civil disputes over lands or villeins and complaints concerning the exactions or royal officers. (The bailiffs had cognizance of civil cases that did not relate to feudal tenures.)
Charles Haskins states that "no difference can be discerned between the matters which were brought before the magna curia and those submitted to the provincial justices, so that it seems probable that these were simply two forms of the same royal jurisdiction; but the complaint would seem to have been lodged in the first instance with the magna curia, and the justices regularly act by virtue of a royal writ." 23
The procedure of the various royal courts (central, provincial, local, and urban) in twelfth-century Norman Italy differed in different types of cases. It also showed traces of many different traditions, including Norman, Lombard, Byzantine, and Arab. Under Lombard influence, local laymen were used as wise men to advise the judge in certain types of cases. The Germanic ordeals of fire and water and compurgation by twelve oath helpers were also used, as well as the Norman trial by combat. However, under the influence of the new Romano-canonical procedure of the twelfth century, and of the new scholastic legal science, Roger II also introduced an inquisitional procedure, in which the judge interrogated witnesses (including witnesses not presented by the parties) and examined written evidence. Article 22 of the Assizes of Ariano prescribed that "a diligent inquisition should examine arguments, witnesses, written evidence, and other indicators of truth," and that the udge should respect not only the evidence presented by the prosecutor
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but also "should be in the middle between each person, so that he will only render judgment according to all competent evidence carefully sought out." This is a very early example of the introduction of a system of rational proof in the royal courts of Europe. In Carolingian times, to be sure, proof by inquest, or inquisition, had been used, but in a much more primitive form and for proof of facts in a much narrower circle of cases, and only in the court of the king himself or the courts of ecclesiastical or noble dignitaries specially designated. The Assizes of Ariano, by contrast, provided for a much more elaborate procedure which was extended to a substantial variety of cases in all the courts that had jurisdiction over them; moreover, the procedure was used not only at the stage of trial to prove the elements of the offense but also, in criminal cases, at the stage of indictment, to discover the probable offender. 24_